واکاوی فقهی پیامد تغییرجنسیّت در حقوق مالیه نکاح

Gender change is one of the most important issues that has attracted the attention of jurists and lawyers. The present study aims to answer this question, what is the consequence of gender change in dowry, alimony, and Marriage expenses? With the descriptive-analytical method, it has been concluded that transgender in a marriage, according to a theory called (discovery), if the husband changes gender after intercourse, the wife has the right to receive the Marriage Portion, and if the husband before intercourse, Gender reassignment, or if the wife changes gender, the wife is not eligible to receive the Marriage Portion. Also, the right to alimony depends on the marriage itself, and either husband or wife can take the marriage expenses from the other if they have the right. 
Introduction:
Gender reassignment is one of the most important issues that has attracted the attention of jurists and lawyers. Given that gender reassignment causes a person to become the opposite sex, patients with gender identity disorder suffer from many social health problems. Among these problems are the adverse economic consequences, such as their financial rights in marriage. Accordingly, one of the matters that plays an effective role in protecting their social health is determining the legal and jurisprudential issues related to them.
Materials and Methods:
The present study, by using a descriptive-analytical method, firstly, by clarifying the jurisprudential subject matter and secondly, by criticizing and examining the opinions of Imamiyya jurists on ijtihad issues related to gender reassignment, aims to take steps towards improving the social conditions of patients with gender identity disorder.
Results and Discussion:
Whenever a marriage contract is concluded between two individuals and then one of the spouses changes gender, the popular and dominant opinion is that the previous marriage is null and void from the time of the contract. There are three theories regarding the ownership of the dowry to the wife after the marriage contract is annulled based on this basis.
1- Absolute termination of the dowry: In this assumption, the dowry does not belong to the wife and the husband is absolutely not responsible for anything. Whether there has been intercourse or not, it does not matter whether the husband changes gender or the wife. In any case, the husband is not obligated to pay the dowry. The reason for the above possibility has been expressed as follows: the essence of marriage is the exchange of a woman’s share for the dowry, and the change of gender causes the dissolution of this exchange, and each of the two exchanges inevitably returns to its original place, and as a result, the entire dowry becomes the property of the husband.
2- Payment of dowry absolutely: According to this view, payment of dowry is absolutely obligatory. One reason is that the proof of the full dowry is a requirement of the marriage contract, and as soon as the marriage contract is concluded, the dowry is fixed on the responsibility of the husband, and whenever intercourse takes place, the full dowry is established, and whether the marriage survives or not, in any case the full dowry is the responsibility of the husband. Therefore, if a divorce occurs or the "subject of marriage" is nullified due to gender change, it has no effect on the essence of the matter, which is "proof of the full dowry for the wife." Another reason is that dowry is the validation of something for the wife in addition to the subject of marriage. Therefore, dowry is a condition included in the contract, and whenever the contract is concluded with this condition and the sacred law and the wise sign it, the requirement is that the wife becomes the owner of the dowry.
3- Full dowry in case of penetration and its halving in case of no penetration: Based on this assumption, the argument for not paying the full dowry in case of no intimacy has been based on reliable and authentic narrations that consider the obligation of dowry to be dependent on intercourse.
In temporary marriage, based on the theory of "discovery of the invalidity of marriage", if a person has changed gender and is a wife, whether or not he has had intercourse with her, he is not entitled to dowry. If the husband has changed gender, and this change occurs before intercourse and intimacy with his wife, dowry is not due to the wife, but if he has changed gender after intercourse, he is obliged to pay the wife a dowry equivalent to the dowry. Since the rulings are subject to the subject matter, when the principle of the contract is destroyed by the change of gender, there will be no alimony as a result. However, in relation to the expenses during the marriage period that each of the husband and wife has given to each other during the period of marital relationship, they can refer to each other.
Conclusion:
From the study, it has been concluded that gender change in a permanent contract, based on the theory of "discovery", indicates the invalidity of the marriage contract from the moment of its conclusion. Because the marriage was between two people of the same sex from the beginning, and such a marriage is against Islamic law and Sharia.
Therefore, if the act of gender change is carried out by the husband and this act is after his intercourse and intercourse with the wife, due to the reasons of respect for the vagina, the wife is entitled to the equivalent dowry, and if the husband changes gender before intercourse and intercourse with the wife, the wife does not have the right to receive the dowry. Because with the invalidation of the marriage, it is discovered that the dowry has not been included in the wife's property and there is no evidence that the dowry belongs to the wife.
However, if the act of gender reassignment is by the wife, based on whether or not intercourse has taken place, the wife does not have the right to demand dowry because, according to the theory of discovery, it is proven that the wife is actually male and the marriage in question was concluded between two people of the same sex, and since marriage between two people of the same sex is illegitimate, dowry does not accrue to the wife. Since the rulings are subject to the subject matter, when the principle of the contract is destroyed by gender reassignment, there will be no alimony as a result. However, with regard to the expenses during the marriage period that each of the husband and wife has given to the other during the period of the marital relationship, they can refer to each other.
Therefore, the theory of discovery states that if a man changes his gender from the beginning of the marriage contract – permanently or temporarily – he has a disorder in his gender identity. Therefore, as a man, he is not legally obligated. Similarly, if a woman changes her gender, she has a disorder in her gender identity from the beginning of the marriage contract, so she does not have the legal rights of a woman.
It is worth mentioning that the discovery theory is more consistent with the approach of protecting social health - patients with gender identity disorder. Because a man, when he becomes a woman, faces the specific economic consequences of a woman, which reduces his economic power. Therefore, he does not have the ability to pay a dowry - beyond the equivalent dowry - and alimony in the short term. Conversely, a woman, when she becomes a man, will be more capable of managing her life and livelihood in the long term. Therefore, due to not receiving a dowry and alimony, she will not suffer such losses - based on her own voluntary actions.